Criminal Law: D.U.I. (Driving Under the Influence)
After many new laws and Supreme Court decisions in recent years, the penalties for "drunk driving" no longer consist of just a slap on the wrist and an escort home. Today, penalties for a DUI can be more extreme than for many felony offenses. And the laws defining the offense, the related procedures and the evidence have grown incredibly complex and convoluted. Facing the criminal and DMV license suspension procedures without the protection of a DUI defense attorney is dangerous.
The process typically begins with a citizen being pulled over for weaving or driving erratically, or perhaps with being stopped at a "sobriety checkpoint". After stopping the individual, the officer immediately begins to interrogate him. Without being given any right to an attorney, or even a Miranda warning, this individual is asked to make incriminating statements that can later be used against him. The officer may request a breath test be taken with a hand-held "PAS" (preliminary alcohol screening) device. Then, under already very stressful conditions, the individual is asked to take a series of "field sobriety tests"" -- physical exercises that are difficult for most of the general public to pass. In most cases, the officer will fail to inform this individual that these field sobriety tests are not required by law.
Once the arrest has been made, an evidentiary chemical test is required of the suspect, usually at the police station. Still without an attorney present, the individual must choose either a breath or blood test. If the arrested individual refuses to submit to testing, the law imposes an automatic one-year license suspension and an extended jail sentence. Breath tests are administered using some version of a breathalyzer. The suspect's license will be immediately suspended if the breath test result is over .08%, if a blood sample is taken for later analysis, or if the suspect refuses chemical testing. The officer will then confiscate the driver's license and issue the arrestee a pink "Notice of Suspension" form, which also serves as a 30-day temporary license. The officer is then required to forward your driver’s license and a copy of a notice of suspension to the Department of Motor Vehicles (DMV) as soon as possible.
In California, when you are arrested for a DUI, two separate cases arise:
- California DMV Hearing
- Court Case
Note: It is critical that the suspect, or preferably his lawyer, contact the DMV within 10 calendar days from the time of the arrest to schedule an administrative hearing. After 10 days, the individual forfeits his right to a hearing -- and any chance to have the suspension "set aside".
Many individuals charged with a DUI miss this 10 day deadline. Be sure that you don’t!
If a hearing (Administrative Per Se (APS) ) is not demanded, or if it has been lost, there will be a license suspension of four months for a first offense. This suspension begins 30 days after the arrest or, if a hearing has been held and lost, upon notification by mail. For second time offenders (within the past 10 years), or if chemical testing was refused, the suspension will be one year.
While these suspensions can be successfully challenged by a qualified attorney, a hearing must be scheduled in the first place.
The second proceeding the individual must deal with in a California drunk driving case is the criminal prosecution in court. The suspect will be charged with two offenses and, surprisingly, can be convicted of both of them. The penalties are the same, however, and the individual can only be punished for one.
The first offense is driving under the influence of alcohol (and/or drugs), also known as DUI. The second is the so-called "per se" offense: driving with a blood-alcohol level above .08%. If the chemical testing was refused, and if police do not forcefully take a blood sample, there will be no evidence of blood-alcohol concentration and the "per se" offense will not be charged. However, the accused faces increased penalties on the DUI charges for refusing.
When a person is arrested for driving under the influence (DUI) in California, the arresting officer in most cases will confiscate the individual's driver's license. The officer will give the driver a pink sheet of paper that serves as both a 30-day temporary license and a formal notice of suspension. (Note that out-of-state drivers will not have their licenses confiscated.) It is very important for drivers to contact the California Department of Motor Vehicles (DMV) within 10 days of their arrest in order to request a hearing to contest the suspension. This request will result in an extension of the 30-day temporary license until such time as a California DMV Administrative hearing is scheduled.
The Administrative review process is conducted by an employee of the DMV. He or she will review the arresting officer's paperwork and all evidence presented to determine if in fact the suspected California DUI offender's driving privileges should be suspended or revoked. It is important to note that the California DMV has what is called the "burden" at the hearing to prove that the individual is in fact guilty and should have their driving privileges suspended or revoked. An experienced California DUI attorney will try to keep these and all court documents excused from this review process. Documents created in court are considered hearsay and oftentimes a California DUI/DWI attorney will have success in doing so. Both Evidence Code sections 664 and 1280 can be utilized either separately or together in order to object to the admission of reports.
At this hearing, the California DUI defense attorney can present any rebuttal evidence, call witnesses, and effectively use other strategies to set aside a client's driver's license suspension, including utilizing Title 17 to have any chemical test results excused. Once both sides have presented their case, the DMV hearing officer will review all of the facts and send a formal written decision to the California DUI defense lawyer handling the case. This typically takes anywhere from two weeks to a month or more.
The two possible outcomes to a DMV Administrative Hearing are: (1) any action to suspend, revoke, or restrict your driving privileges is set aside, and (2) your driver's license is suspended, revoked, or restricted. In addition, the California DMV does have the right to issue conditions which must be met in order for your driving privileges to be reinstated. These include attending AA meetings or completing an alcohol education class.
It is important to keep in mind that if your driver's license is suspended or revoked as a result of a DMV Administrative hearing, you do have the right to request another hearing to contest the results.
This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.